The confiscation of assets in the crime of money laundering: the confusion between licit and illicit assets

Abstract

This article analyzes the confiscation of assets in the crime of money laundering based on cases of confusion between licit and illicit assets. The theme is justified to the extent that this mixture is widely used in laundering operations, and there is still no clear jurisprudential criterion for the identification of the object of confiscation in cases of this nature. In this sense, the objective of this paper is to identify the best criterion to be used to determine confiscation when there is confusion between assets. The methodology used is based on the dialectical approach and the research technique relies on indirect documentation, especially bibliographic and normative. The proposal defended is that the property precautionary measures and the confiscation of assets are becoming more and more common in money laundering crimes, both for repressive and preventive purposes. The Brazilian money laundering law, on the other hand, presents detailed regulation of the measures to secure assets, rights or values, as well as anticipated alienation and confiscation of assets. In order to identify the licit and illicit portions that make up the assets, the theory of total contamination establishes that any degree of contamination reaches the entirety of the asset (which is softened by some authors with the establishment of a minimum quota of taint). However, the theory that must be adopted is that of partial contamination, by which the goods resulting from the mixture of licit and illicit capital will only be contaminated in proportion to the spurious origin, and this quantum must be duly ascertained and declared in a sentence when confiscation is imposed.